Why Does China Reject the Award by the Arbitral Tribunal in the South China Sea Arbitration?

Corporate Client article

Sunday, July 24, 2016

H. E. Mr. Wei Ruixing, Chinese Ambassador to Lithuania.After the Arbitral Tribunal in the South China Sea arbitration established at the unilateral request of the Republic of the Philippines (hereinafter referred to as “the Arbitral Tribunal”) announced its award on 12 July 2016, the Chinese Government issued “the Statement on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea”, and the Chinese Foreign Ministry issued “the Statement on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines”. Both Statements explicitly expound on China’s solemn position that China neither accepts nor recognizes it. Now I wish to elaborate on some questions raised recently.

1. Why China from the beginning has been upholding its position of neither accepting nor participating in the arbitration?

First, the subject-matter of the arbitration initiated by the Philippines is in essence an issue of territorial sovereignty over some islands and reefs of Nansha Qundao (the Nansha Islands), and inevitably concerns and cannot be separated from maritime delimitation between China and the Philippines. Fully aware that territorial issues are not subject to the United Nations Convention on the Law of the Sea (UNCLOS), and that maritime delimitation disputes have been excluded from the UNCLOS compulsory dispute settlement procedures by China's 2006 declaration, the Philippines deliberately packaged the relevant disputes as mere issues concerning the interpretation or application of UNCLOS.

Second, the Philippines' unilateral initiation of arbitration infringes upon China's right as a state party to UNCLOS to choose on its own will the procedures and means for dispute settlement. As early as in 2006, pursuant to Article 298 of UNCLOS, China excluded from the compulsory dispute settlement procedures of UNCLOS disputes concerning, among others, maritime delimitation, historic bays or titles, military and law enforcement activities.

Third, the Philippines' unilateral initiation of arbitration violates the bilateral agreement reached between China and the Philippines, and repeatedly reaffirmed over the years, to resolve relevant disputes in the South China Sea through negotiations.

Fourth, the Philippines' unilateral initiation of arbitration violates the commitment made by China and ASEAN Member States, including the Philippines, in the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC) to resolve the relevant disputes through negotiations by states directly concerned. By unilaterally initiating the arbitration, the Philippines violates UNCLOS and its provisions on the application of dispute settlement procedures, the principle of "pacta sunt servanda" and other rules and principles of international law.

2. Why does China reject the award by the Arbitral Tribunal?

First, the Arbitral Tribunal disregards the fact that the essence of the subject-matter of the arbitration initiated by the Philippines is issues of territorial sovereignty and maritime delimitation.

Second, the Arbitral Tribunal erroneously interprets the common choice of means of dispute settlement already made jointly by China and the Philippines, erroneously construes the legal effect of the relevant commitment in DOC.

Third, the Arbitral Tribunal deliberately circumvents the optional exceptions declaration made by China under Article 298 of UNCLOS, selectively takes relevant islands and reefs out of the macro-geographical framework of Nanhai Zhudao (the South China Sea Islands), subjectively and speculatively interprets and applies UNCLOS, and obviously errs in ascertaining facts and applying the law.

Fourth, the conduct of the Arbitral Tribunal and its awards seriously contravene the general practice of international arbitration, completely deviate from the object and purpose of UNCLOS to promote peaceful settlement of disputes, substantially impair the integrity and authority of UNCLOS, gravely infringe upon China's legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful.

3. Will China adjust its claims in the South China Sea?

China’s territorial sovereignty and maritime rights and interests in the South China Sea are based on solid historical and legal ground. They shall not be affected by the award by the Arbitral Tribunal in the South China Sea arbitration.

The statement issued by the Government of the People’s Republic of China on July 12, 2016 reaffirmed China's territorial sovereignty and maritime rights and interests in the South China Sea, which include, inter alia: China has sovereignty over Nanhai Zhudao (the South China Sea Islands); China has internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf based on its sovereignty over Nanhai Zhudao; and China has historic rights in the South China Sea.

China’s territorial sovereignty and maritime rights and interests in the South China Sea are not new claims. These, including the dotted line, have been formed in the long course of history, and have been upheld by the successive Chinese governments. Any attempt by any force to undermine or deny in any way China’s territorial sovereignty and maritime rights and interests will be futile and will fail. On issues of territorial sovereignty and maritime rights and interests, China will not accept any means of third-party dispute settlement without China’s prior consent or any imposed solution. This temporary tribunal, unjust and highly controversial, does not stand for international law, the rule of law or equity and justice in the world.

4. How to resolve the disputes in the South China Sea?

The arbitration and the out-of-bad-faith dramatization and political manipulation that ensued have put the South China Sea issue to a dangerous situation, with growing tension and confrontation. It is detrimental to peace and stability in the region, and it does not serve the common interests of China and the Philippines, countries in the region or the wider international community. Now the farce is over. It is time that things come back to normal.

China respects and upholds the freedom of navigation and overflight enjoyed by all states under international law in the South China Sea, and stays ready to work with other coastal states and the international community to ensure the safety of and the unimpeded access to the international shipping lanes in the South China Sea.

China is committed to the full and effective implementation of DOC, and will work to advance the consultations on a Code of Conduct within the framework of DOC. China stands ready to continue to resolve the relevant disputes peacefully through negotiation and consultation with the states directly concerned on the basis of respecting historical facts and in accordance with international law. Pending final settlement, China is also ready to make every effort with the states directly concerned to enter into provisional arrangements of a practical nature, including joint development in relevant maritime areas, in order to achieve win-win results and jointly maintain peace and stability in the South China Sea.

China is a contributor to global order, international and regional peace and stability. China is committed to grow good-neighborly and friendly relations with its neighbors. China has an international responsibility to uphold peace and stability in this region, and China will remain firm in its strategic determination to pursue peaceful development.

NOTE: The opinions expressed in this article are solely the author's and do not represent those of EN.DELFI by the Lithuania Tribune or its staff.